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Democracy and Communications: an Analysis and Assessment of the Public Participation Programme of the Constitutional Assembly

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Democracy and Communications: an Analysis and Assessment of the Public Participation Programme of the Constitutional Assembly The copyright of this thesis vests in the author. No quotation from it or information derived from it is to be published without full acknowledgementTown of the source. The thesis is to be used for private study or non- commercial research purposes only. Cape Published by the University ofof Cape Town (UCT) in terms of the non-exclusive license granted to UCT by the author. University DEMOCRACY AND COMMUNICATIONS: AN ANALYSIS AND ASSESSMENT OF THE PUBLIC PARTICIPATION PROGRAMME OF THE CONSTITUTIONAL ASSEMBLY Town Cape BY SYNN0VE ofSKJELTEN University A THESIS PRESENTED TO THE DEPARTMENT OF POLITICAL STUDIES UNIVERSITY OF CAPE TOWN NOVEMBER 1999 ACKNOWLEDGEMENT A thesis is a solitary project, but the process of writing a thesis depends on the people around you who are willing to assist you to bring the project to satisfactory completion. I would like to thank the former CA staff who were always accessible and willing to assist me with my research - Edward Shalala deserves a special mention. I would also like to thank Ragnhild Mork and Per Fredrik Pharo. They came to South Africa on holiday and instead of just relaxing, they made time to give me constructive advice on the first tentative draft of my thesis and on thesis-writing in general. I truly appreciate their support and friendship.Town I am also grateful to Melissa Steyn, who provided academic guidance during a very difficult time. Professor Jeremy Sarkin's knowledge and enthusiasm, both in his articles on the constitution-making process and in our manyCape conversations on the topic, are much appreciated. I also want to extendof my gratitude to Alison Tilley, Vincent Saldanha and Mandla Gxanyana who took time out of their busy schedule to meet with me. Their comments were of great importance. I am grateful to Libbie Downes - her tireless commitment, care and professionalism provided invaluable administrative andUniversity moral support. It meant a lot to me - thank you. I would also like to thank my family in Norway for always supporting me in my endeavours and who are never more than a phone call away when I need them. I would like to dedicate this thesis to an extraordinary man, my grandfather Sevrin Skjelten, who "studerte pei Hurlen Vniversitet med grisebiologi som bi-fag". Little did he know when he walked the Jameson stairs at VCT in 1937 that his granddaughter would walk the same stairs, 60 years later. Farfar - this one is for you. THESIS ABSTRACT This thesis analyses the Public Participation Programme in the South African constitution-making process. The central premise of the thesis is that there is a link between participatory lawmaking processes and legitimate democracy. Accordingly, the drafting of the constitution and other law requires public participation in order to be accepted and recognised. Jurgen Habermas' latest theory (Between Facts and Norms) is used in this analysis. Jurgen Habermas has developed a new theoretical paradigm that defines the tension that exists between the coercive factual force of law ("facticity") and the recognition of law ("validity"). Habermas takes into account that modern democracy is made up of a complex web of social relationshipsTown - defined by pluralism and a lack of homogeneity. According to Habermas, this post­ metaphysical or post-traditional reality poses certain challenges for a modern democracy. He argues that these challenges Capeforce society to look at alternative ways to establish common legal norms -oflegal norms that everybody can come to recognise. In this regard, he proposes a discursive lawmaking process. This process is explained by a participatory approach in which the public sphere, and particularly civil society in the public sphere, have the opportunity to influence the institutionalisedUniversity lawmaking process. Habermas believes that civil society structures such as public interest groups are important in this regard. These groups identify social problems, they are able to formulate these problems and they resonate the experiences of the private sphere. It is argued in this thesis that the challenges of law and the tension between facticity and validity in South Africa have specific historical characteristics that are different from the kind of challenges that established democracies are currently faced with. However, in a country such as South Africa, with a history defined by political and social polarisation, Habermas' theoretical paradigm provide both an understanding of the particular challenges of law and democracy and the necessary mechanism to deal with this tension. The thesis examines the various mechanisms used in the Public Participation Programme of the Constitutional Assembly in relation to Habermas' theory. The Constitutional Assembly's objectives, strategies and the implementation of the Public Participation Programme are presented and analysed. Documentation from the Constitutional Assembly provide detail of both strategies and implementation. Various evaluations of the programme which were conducted by the Community Agency for Social Enquiry and Roots Marketing and Research, give an indication of the impact and reach of the Public Participation Programme. Further, these evaluations give an outside perspective of how the programme was implemented. Town The Head of the outreach component of the Constitutional Assembly's Public Participation Programme was interviewed in order to provide further clarification and detail about the mechanics Capeof the programme. Interviews with relevant civil society stakeholders wereof conducted. These interviews provide evidence of how the participation process was perceived. All interviews were open-ended and they lasted approximately an hour. The interviewees were asked how they participated, whether they believed they had any impact, how they perceived the process and what issues they had raised. Newspaper articles and literature on the subjectUniversity were also used in order to establish how the process was perceived. The thesis found that the Constitutional Assembly demonstrated an implicit understanding of the tension between facticity and validity. The Constitutional Assembly also showed a commitment to deal with this tension. By using plain language and educating the public about the process, the programme was made inclusive and accessible to people who would otherwise have been excluded. The process afforded both national and community based civil society structures an opportunity to influence the institutionalised decision-makers. In terms of Habermas' theory, it is unavoidable that some groups in the public sphere have more influence than others. What is important is that the more influential groups articulates the social experiences found in the private sphere. The thesis found that the Constitutional Assembly was open to input from human rights organisations and other public interest groups. The constitution-making process confronted the political and social challenges of South African society, and the public participation programme reflected an understanding of the relationship between law and democracy both in the design and the execution of the programme. Town Cape of University LIST OF ABBREVIATIONS ANC African National Congress ACDP African Christian Democratic Party CA Constitutional Assembly cr Constitutional Committee (of the Constitutional Assembly) CEP Constitutional Educational Programme CODiliA Conference of a Democratic South Africa COSATU Congress of South African Trade Unions CPM Constitutional Public Meetings DP Democratic Party FF Freedom Front Town IFP Inkatha Freedom Party MC Management Committee (of the Constitutional Assembly) NP National Party Cape NSHP National Sector Hearing Programmeof PAC Pan African Congress PPP Public Participation Programme 1C Theme Committee (of the Constitutional Assembly) UDF UnitedUniversity Democratic Front TABLE OF CONTENTS 1. Introduction............................................................................................................. 1 2. Theoretical framework 2.1 Introduction........................................................................................................ 8 2.2 Modernity: Setting the scene............................................................................... 9 2.3 Modernity: The complex challenges of democratic legitimacy............................ 11 2.4 Habermas' approach to legitimate lawmaking and democracy ............................. 23 2.5 Concluding remarks............................................................................................ 41 3. Towards democracy: A background to the constitution-making process Town 3.1 Introduction ........................................................................................................ 44 3.2 The lawlessness of apartheid law........................................................................ 45 3.3 The last decade of apartheid............................................................................... Cape 50 3.4 1990 - 1994: A prelude to democracy................................................................ 52 3.5 From liberation movements to civilof society: An uneasy transition? ................. 55 3.6 Transformation: Creating accountability and legitimacy from the ashes of apartheid ........................•...................•.....................................................................61 3.7 The political and administrative structures of the CA ....................................... 63 3.8 The public participation programme - motivation,
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